What Is the 5th Amendment Privilege against Self-incrimination?

The Fifth Amendment of the Constitution reads "no person shall be compelled to be a witness against himself in any criminal case." This language has been interpreted to mean:

The privilege against self-incrimination is a personal privilege which only applies to human beings. The privilege does not exist for corporations.

The privilege against self-incrimination only applies to criminal cases. Thus, a party cannot "plead the fifth" to stay silent in a civil case, unless the answer will tend to incriminate.

"Compelled to be a witness" occurs only when there is a risk of imprisonment for refusing to testify or produce documents.

The prosecution and judge may not infer that refusal to testify means an individual is guilty.

Certain relationships are granted immunity from testifying against each other. These relationships include but are not limited to: spousal relationships, lawyer-client relationships, and doctor-patient relationships.

What Things Do Not Carry 5th Amendment Self-incrimination Protection?

A few circumstances exist where the Fifth Amendment does not apply. These include:

The use of one's body to incriminate one's self. That is, a person cannot disguise themselves to avoid being identified.

The government can invade a person's body to obtain evidence. The government's need for this evidence must outweigh the individual's right to privacy.

Examples of incriminating evidence include: footprints, fingerprints, DNA, breath, blood samples, hair, saliva, semen, records, and journal or diary entries.
- Strip Searches: require that the government has a reasonable suspicion of criminal activity. They must be conducted by a member of the same gender, and in private.
- Body Cavity Searches: must not endanger health, must not cause severe pain or discomfort, must avoid being extremely humiliating or degrading, and cannot produce lasting trauma. Typically, a search warrant is required and the search must be conducted by a medical professional.

Do I Need a Lawyer?

If you feel that your constitutional rights have been compromised, you should contact a criminal lawyer. Speaking with a government attorney experienced in constitutional law will also help inform you of your rights as well as preserve any possible legal remedies you may have.

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